Foreign Judgments & NRI Divorce Decrees

Foreign Judgments

CPC sec.2(6) defines ‘a foreign judgment’ as “the judgment of a foreign Court.”

CPC sec.2(5) defines ‘a foreign Court’ as “a Court situate outside India and not established by the Central Govt.”

Whether ‘a foreign judgment’ binds the Indian Courts?

Sec.14 CPC gives guidance as to ‘Presumption of a foreign judgment’ as the Court (Indian Court) shall presume, upon the production of a certified copy of a foreign judgment, which was pronounced by a Court of competent jurisdiction.

Sec.13 of CPC postulates certain circumstances when a foreign judgment is not conclusive one.

A foreign judgment shall be conclusive one as to ‘any matter directly adjudicated upon’ between the same parties (or between parties under whom they claim).

Certain exceptions are to this Rule. The “exceptions” to this rule are –

(a)    Where it has not been pronounced by a Court of competent jurisdiction;

(b)   Where it has not been given on the merits of the case;

(c)    Where it appears on the face of the proceedings to be founded on the incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable;

(d)   Where the proceedings in which the judgment was obtained are opposed to natural justice;

(e)   Where it has been obtained by fraud;

(f)     Where it sustains a claim founded on a breach of any law in force in India;

The Madras High Court’s view as to the circumstances which would give jurisdiction to foreign Courts:

(1)    Where the person is a subject of the foreign country in which the judgment has been obtained;

(2)    Where he was a resident in the foreign country when the action was commenced and the summons was served on him;

(3)    Where the person in the character of plaintiff selects the foreign court as the forum for taking action in which forum he is sued later;

(4)    Where the party on summons voluntarily appeared (in a foreign court);

(5)    Where by an agreement, a person has contracted to submit himself to the forum in which the judgment is obtained.

Those are all the circumstances under which a foreign Court has jurisdiction and such judgment passed by such court as competent jurisdiction.

The Supreme Court’s view as to competent jurisdiction of a foreign court:

“Unless a foreign court has jurisdiction in the international sense, a judgment delivered by that court would not be recognized or enforceable in India.

The true basis of enforcement of a foreign judgment is that the judgment imposes an obligation upon the defendant and, therefore, there must be connection between him and the forum sufficiently close to make it his duty to perform that obligation.

Foreign Judgment which is “opposed to natural justice” as stipulated in Sec.13(d):

The Supreme Court held that the expression “contrary to natural justice”, when applied to foreign judgment, merely relates to the alleged irregularities in procedure adopted by the adjudicating court and has nothing to do with the merits of the case. The courts have to see that the defendant had not been deprived of an opportunity to present his side of the case. The wholesome maxim “audi alteram partem” is deemed to be universal not merely of domestic application.

How a Decree of a foreign court can be executed?

The execution of a decree (whether it is passed by an Indian Court or a foreign Court) can be executed (implemented) under the provisions of CPC and not by any other law.

Sec.44(A) CPC prescribes the execution of decrees passed by Courts in reciprocating territory --

(1)    Where a certified copy of a decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court (in India).

(2)    Together with the certified copy of the decree, shall be filed a certificate from such superior Court stating the extent to which the decree has been satisfied.

(3)    The District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the ‘exceptions’ specified in clause (a) to (f) of section 13 CPC.

“Reciprocating territory” means – any country or territory outside India which the Central Govt may, by Notification in the Official Gazette, declare to be a reciprocating territory for the purpose of this section.

 “Decree with reference to a superior Court” means – any decree or judgment of such Court under which a sum of money is payable, but in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.

If it is not a reciprocating country or territory:

If a decree is passed by a foreign court which is not a ‘reciprocating territory’ under the Central Govt’s notification, then such decree or judgment cannot be executed in India and in that case, the party has to file a fresh suit in India.

Foreign Decree of Divorce:

Sec.13 CPC is applicable to matrimonial cases also.

A decree obtained by a spouse (either husband or wife) in a foreign Court in the absence of the other spouse, such decree granted by a foreign court is a nullity (it is not valid and it is not binding the opposite party) and therefore it cannot be executed in India.

If the defendant is a resident of a foreign country when the action is commenced in a foreign Court, such judgment is binding on the defendant and it can be executed against that defendant in India.

NRI Divorces:

The following is the NEWS from the Times of India regarding NRI Divorce:

The Times of India NEW DELHI Oct 9, 2011:

A trial court has held that a divorce decree granted by a foreign court to an NRI is invalid in case the woman does not have the means to go to that country to plead her case and if she had not subjected herself to the jurisdiction of that court. 

"The apex court has opined that where the foreign judgment is in defiance of the Indian Law, it could not be said to be conclusive... in the matter adjudicated and would be unenforceable," in this country," it said, adding the woman's objections raised by the woman fell within the purview of the exceptions of Section 13 Civil Procedure Code (when 'foreign judgment not conclusive'. 

The court gave the ruling in a case where a UK-based NRI divorced his wife there though his wife had returned to India and not "submitted to the jurisdiction of a foreign court". The woman has sought divorce here on grounds of cruelty. The court said that the decree of divorce granted by the court could not be recognized.